In its third partial decision, among other things, the Court stated: [T]he provisions of the Preamble are thus a legal basis for reviewing all normative acts lower in rank in relation to the Constitution of BiH for as long as the aforesaid Preamble contains constitutional principles delineating [...] spheres of jurisdiction, the scope of rights or obligations, or the role of the political institutions.
The provisions of the preamble are therefore not merely descriptive, but are also invested with a powerful normative force thereby serving as a sound standard of judicial review for the Constitutional Court [...] [E]lements of a democratic state and society as well as underlying assumptions – pluralism, just procedures, peaceful relations that arise out of the Constitution – must serve as a guideline for further elaboration of the issue of the structure of BiH as a multi-ethnic state [...] Territorial delimitation [of Entities] must not serve as an instrument of ethnic segregation – on the contrary – it must accommodate ethnic groups by preserving linguistic pluralism and peace in order to contribute to the integration of the state and society as such [...] Constitutional principle of collective equality of constituent peoples, arising out of designation of Bosniacs, Croats and Serbs as constituent peoples, prohibits any special privileges for one or two constituent peoples, any domination in governmental structures and any ethnic homogenization by segregation based on territorial separation [...] [D]espite the territorial division of BiH by establishment of two Entities, this territorial division cannot serve as a constitutional legitimacy for ethnic domination, national homogenisation or the right to maintain results of ethnic cleansing [...] Designation of Bosniacs, Croats and Serbs as constituent peoples in the Preamble of the Constitution of BiH must be understood as an all-inclusive principle of the Constitution of BiH to which the Entities must fully adhere, pursuant to Article III.3 (b) of the Constitution of BiH.
There is no mention in the Constitution of Bosnia and Herzegovina or in any other law of a specific hierarchy or other relationship between the Constitutional Court and the Human Rights Chamber [...] [C]orrect interpretation must be that the authors did not intend to give either one of these institutions the competence to review the decisions of the other, but rather considered that, in regard to human rights issues, the Constitutional Court and the Human Rights Chamber should function as parallel institutions, neither of them being competent to interfere in the work of the other and it being left in some cases to the discretion of applicants to make a choice between these alternative remedies.
The Court had recognized that the situation created by the Dayton Agreement might result in certain problems such as possible conflicting case law concerning some human rights issues, however it also concluded that the problem was mostly of a temporary nature since the Agreement foresaw the possibility of the transfer of the competence in this area to the institutions of Bosnia and Herzegovina dealing with human rights.
Among other issues, the applicants contended that the High Representative did not have the normative powers to impose a law in the absence of a vote by the Parliamentary Assembly.
In its majority decision (7-2), the Court had, among other things, held the following: [T]he High Representative – whose powers under Annex 10 to the General Framework Agreement, the relevant resolutions of the Security Council and the Bonn Declaration as well as his exercise of those powers are not subject to review by the Constitutional Court – intervened in the legal order of Bosnia and Herzegovina substituting himself for the national authorities.
Bičakćić was removed on the grounds of criminal offenses that were allegedly committed during the performance of his duties as the Prime Minister of the Federation of B&H.
Both were also barred from other public and party duties that they were performing, and from holding any official, elective or appointive public office and from running in elections and from office within political parties unless or until such time the High Representative, by his subsequent decision, expressly authorizes them to do or hold the same, also ending any entitlements they had to receive remuneration or any privileges or status they had from those positions.
Although the judge confirmed that the alleged offenses were committed in Mostar, he based his competency, among other things, on the Decision of the High Representative of 26 April 2001, on establishing the territorial and subject-matter competence of the Cantonal Court in Sarajevo "for conducting investigation and first instance trial against perpetrators of all criminal acts" arising from certain events in which the appellant was allegedly involved.
This Decision derogates the respective provisions of the Criminal Procedure Code, which rather comprehensively specify the issue of territorial competence with regards to offenses.
The acts passed by the High Representative have to have a positive reflection on the principle of democracy, legal state and on the guarantees of a fair trial.
In the present case, the Decision of the High Representative does not contain a reasoning which would justify the general interest of restriction of the rights provided for in the Criminal Procedure Code.
The Decision has been imposed, which is in breach of the principle of democracy and legal state, provided for in Article 112 of the Constitution of Bosnia and Herzegovina.
In its unanimous decision, the Court had, among other things, held the following: The High Representative is vested with general competence for implementation of civilian aspects of the Peace Agreement.
[20] On 30 July 2001, Sejfudin Tokić, Deputy Chair of the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina at the time of its filing request, filed with the Constitutional Court of Bosnia and Herzegovina a request for a review of constitutionality of Articles 11 and 11(a) of the Law on Territorial Organization and Local Self-Government (Official Gazette of the Republika Srpska Nos.
Previously the Chairman of the Council of Peoples of the Republika Srpska initiated the procedure for the protection of vital national interest of Bosniak people under the Law on Territorial Organization of the Republika Srpska before the Council since that Law did not include prefix "Bosnian" in front of the names of the municipalities of Brod and Kostajnica, which had such prefix before, and this prefix was also absent in the names of the municipalities whose names had been previously changed (Gradiška, Novi Grad, Šamac and Kozarska Dubica).
In its decision, among other things, the Court stated: Once it is accepted that the adjective "Bosnian" does not relate to any of the constituent peoples, it is not possible to claim that the omission of that adjective from the name of the locality discriminates directly or indirectly any of the constituent peoples [...] [T]he only threat relate[s] to what the applicants adequately describe, in point 6 of their application, as a danger ... to cultural and historical identity of Bosnia and Herzegovina.
Taking into account the current situation in Bosnia and Herzegovina, the restriction imposed by the Constitution and Election Law, which exist with respect to the appellants' rights in terms of differential treatment of the appellant’s candidacy in relation to the candidacy of other candidates who are the Serbs and are directly elected from the territory of the Republika Srpska, is justified at this moment since there is a reasonable justification for such treatment.
12 to the European Convention and Article 25 of the International Covenant on Civil and Political Rights since the mentioned decisions are not arbitrary and are based on the law.
It means that they serve a legitimate aim, that they are reasonably justified and that they do not place an excessive burden on the appellants given that the restrictions imposed on the appellants' rights are proportional to the objectives of general community in terms of preservation of the established peace, continuation of dialogue, and consequently creation of conditions for amending the mentioned provisions of the Constitution of Bosnia and Herzegovina and Election Law.
Two of the dissenting judges (Grewe and Palavrić) were of the opinion that differential treatment challenged by the appeal is not justified in an objective or in a proportionate manner.
On 30 June 2009, Ilija Filipović, Chairman of the House of Peoples of Bosnia and Herzegovina filed a request for review of the constitutionality of the Law on Protection of Domestic Production under the CEFTA.
In view of the aforesaid, the Constitutional Court concludes that it is at least competent to review the laws which are adopted on the subjects having been previously covered by ratified treaties with regard to Articles VI(3)(a) and VI(3)(c) [...] In view of the aforesaid, the Constitutional Court holds that, pursuant to the rule of pacta sunt servanda, there is an indisputable obligation of the institutions in Bosnia and Herzegovina and first of all of the legislator, to comply with the provisions of the treaties and to execute them in good faith.
[30]Thus, the Court established that the Law on the Protection of the Domestic Production under the CEFTA is inconsistent with Article III(3)(b) of the Constitution of Bosnia and Herzegovina and that it is quashed in its entirety.
In their Separate Joint Dissenting Opinion judges Feldman and Pantiru recognized the importance of pacta sunt servanda principle but still held that it has no more weight than laws passed by the legislators at the state or entity level and that it does not in any case entail giving provisions of treaties a status superior to that of Laws under the Constitution.
[32]The Court had particularly reiterated its previous decisions in the cases U-5/98 and U-8/04, with regards the notion of "effective participation of the constituent peoples in state authorities" which in principle means that officials appointed to positions in institutions of Bosnia and Herzegovina should be representative reflection of advanced co-existence of all peoples in Bosnia and Herzegovina, but that if such participation falls outside the constitutional framework, it must never be carried out or imposed at the expense of efficient operation of the state and its authorities.
Considering the activities undertaken by the Republika Srpska in the present case, the Constitutional Court of BiH holds that it did not relate to the establishment of diplomatic relations with another country, the conclusion of an agreement with another country or international organisation, nor did the Republika Srpska, through the aforementioned activities, represented itself abroad as an independent state, which would bring into question the division of responsibilities in respect of foreign policy and foreign trade policy.
[33]An important aspect of the Decision was the fact that the request was unanimously found to be admissible since it was held that a series of formal acts and activities undertaken by one of the Entities may raise an issue of existence of a dispute between the Entity and B&H over an issue under the Constitution of B&H in respect of which the Constitutional Court of BiH has sole jurisdiction to decide.
Also, in his opinion the challenged activities of the RS included the matters and positions which, by their nature, fall within the scope of the foreign policy of B&H and, as such, they are within the sole responsibility of the B&H.
He also held that the Government of RS, through the preparation and submission of the challenged Second Report, acted unilaterally on the international scene, which constituted an interference with the responsibilities of the State of B&H by the Entity.